The Benevolent Paternalism of Japanese Criminal Justice, Daniel H. Foote

The criminal process is always harsh for those subjected to it, yet the styles of the process can be either lenient or punitive. The Japanese criminal justice system, as Daniel H.

3¹¹ the police and local communities. The stigma of arrest and the high confes­sion rate also help make the system work.

Japan's criminal-justice system has been widely praised both within Japan and abroad as both highly efficient and generally lenient. There is much truth to these characterizations. Japan's clearance rate - the percentage of reported crimes that are solved - is among the highest in the world, and its conviction rate stands at over 99.8%. Yet fewer than 5% of the adult suspects considered by police to have committed Penal Code offenses are sentenced to prison; those who are sentenced to prison serve a median sentence of under two years. In the United States, by contrast, over 30% of arrestees are sentenced to prison where they spend an average of nearly four and one-half years. [...]

The organization of the police force and its manner of patrolling bring the Japanese police into much closer contact with individuals and the community than is currently the case in the United States. Although this might in part be an inevitable result of the fact that Japan has far less land than the United States, Japan also has considerably fewer police per capita than does the United States. What brings the police into closer contact with the community is the stationing of police in local police boxes (koban and chuzaisho) within each neighborhood or town, coupled with regular patrolling through neigh­borhoods on either foot or bicycle.

Notwithstanding the elaborate postwar reforms in the area of interrogation and confessions, Japanese police and prosecutors possess broad powers for preindictment interrogation. Police may request individuals to cooperate voluntarily in questioning and to “voluntarily accompany” them to the police station for such questioning. As interpreted by the Japanese courts, this police power to suggest voluntary accompaniment may be quite broad indeed. In the most extreme reported case to date, the so-called Takanawa Green Mansion Case, four police officers met a murder suspect at his company dormitory one morning and, without arresting him, asked him to accompany them to the police station in their police car. At the station, officers questioned the suspect throughout that day and late into the evening. The questioning continued for three more days; on each of the intervening nights, officers placed the suspect in a nearby hotel room where he could be kept under observation. Finally, the suspect's mother came to Tokyo and signed a form asking the police to release her son into her custody. [...]

Of course investigators do not have time to question each suspect through­out all that time, but they do consider obtaining a confession to be a vital part of each case. And they usually succeed: approximately 90% of Japanese cases involve full confessions, and in most of the remainder the defendant confesses to all but certain elements of the crime (such as intent).

For Japanese investigators, however, obtaining a confession signifies more than just getting the suspect to admit to having committed the crime. It entails obtaining a thorough account of all relevant details of the crime and the personal background and circumstances of the suspect, including possible involvement in other crimes. Obtaining a confession also means getting the suspect to accept moral responsibility. Yet despite the importance of confes­sions, the confession statement itself need not include a verbatim account of the suspect's words. To the contrary, it is a standard and court-approved practice for investigators to prepare summarized confession statements following - sometimes long after - the conclusion of one or even several interrogation sessions. These summarized confession statements typically form the heart of the evidence introduced at trial. Furthermore, the constitutional and statutory prohibitions on use of involuntary confessions have been con­strued narrowly. As a practical matter courts almost always focus their atten­tion on questions concerning the reliability, rather than the voluntariness, of confessions.[...]

Japanese police boast one of the highest rates for clearing reported crimes of any system in the world. Even excluding cases involving professional or gross negligence causing death or bodily injury by traffic accident (all of which were reported as cleared), the 1988 official overall clearance rate for Penal Code offenses was 59.8%. Yet police arrested fewer than 20% of the adult Penal Code suspects they themselves identified. Does this mean that the police were wrong over 80% of the time? That there was no more than minimal intrusion on the personal autonomy of the unarrested 80%? Apparently neither.

In Japan, a crime may be treated as cleared even if police have not arrested a suspect for it. Only a relatively small percentage of those identified as suspects are later deemed to have had nothing to do with the crime in question, and 80% of all identified suspects are not arrested.

3¹3 questioning, but their cases are sent on to the prosecutors for further proceedings.

Even before referral, however, a substantial minority of the cases - nearly 40% of adult Penal Code offenders in recent years - are closed by the police as petty offenses. In principle, this option, known as bizai shobun (disposition of trivial crimes), is reserved for a specified list of minor offenses, including assault, theft, fraud, embezzlement, and gambling. Given the breadth of several of these offenses, police have considerable discretion over what to treat as minor. Suspects in this category are not punished in a formal sense. Yet neither are they cleared from the system free from any consequences whatso­ever. On the contrary, pursuant to official investigation standards, if police release a suspect on the basis of bizai shobun they must take certain steps. Police are required to counsel the suspect sternly and admonish him or her not to commit crimes in the future. Accordingly, suspects can expect to be questioned carefully and given a lecture by police. They may also be required to sign an apology and pledge not to engage in inappropriate behavior again. The investigation standards also instruct police to call in a member of the suspect's family, the suspect's employer, or some other such responsible individual, counsel that person to keep close watch over the suspect in the future, and even have that person undertake in writing to provide such ongoing supervision. Finally, police are required to persuade the suspect to provide restitution, to make an apology, or to take other appropriate measures for the victim. In addition, a record of the bizai shobun will be kept, which presumably will affect decisions on leniency in the event of future wrongdoing.

Thus, for relatively minor crimes in the category of bizai shobun, police have discretion to withhold formal sanctions and avoid substantially disrupting the life of the suspect. In an effort to deter any future misbehavior, police nonetheless seek to impress upon the suspect the gravity of the situation and its potential consequences as a means of deterring any future misbehavior. As a group, police are undoubtedly the most deterrence-minded among criminal­justice authorities in Japan. Yet in handling cases of this sort and in recom­mending that the prosecutors deal leniently with suspects who have “shown sincere repentance,” police give considerable weight to interests of rehabili­tation and specific prevention.

There are at least two broad categories of cases in which police decline to arrest a suspect but still refer him to the prosecutors on an at-home basis. If police have received a formal complaint of crime from a victim or other person, the Code of Criminal Procedure requires the police to refer the matter to the prosecutors. Thus, even if the police feel that a complaint is groundless or that the matter is insignificant they must refer the case to the prosecutors, but in such cases they are unlikely to arrest anyone. Many other at-home referrals fall into a second category, however. These involve relatively serious offenses, with substantial evidence that a particular suspect is guilty. In such cases, even if there has been a formal complaint, the police may nonetheless conclude that there is no need for a formal arrest if factors such as the nature of the crime and the suspect's personal circumstances so indicate. Again, this does not mean that the suspect is not questioned by the police. On the contrary, this latter category of cases is composed almost entirely of suspects who voluntarily cooperate in the investigation, and such “voluntary” question­ing can be lengthy and intense. But in cases in which they refer suspects to the prosecutors without arresting the suspect, the police are implicitly determin­ing that the interest in maintaining order does not necessitate arrest and that the interest in reforming the suspect would best be served by minimizing disruption in the suspect's life.

The absence of a formal arrest requires further comment. Although there are other, more severe types of stigma in the Japanese criminal-justice system, I am convinced that arrest is in practice the most important. In part, this reflects the practical consequences: an arrest carries with it the prospect of physical confinement for at least forty-eight hours and potentially much longer. The first such confinement, presumably, has the greatest psycho­logical and symbolic impact on the individual. More importantly, despite the existence of a presumption of innocence under Japanese law, upon arrest a suspect is widely regarded by the media and the public as guilty. The arrest record can also have a significant effect on employment, community attitudes, and other social relations.

The powerful stigma of arrest, I believe, helps to explain in part why Japanese courts have been willing to relax greatly the standards for voluntary accompaniment. The courts seem inclined to let police use considerable “persuasion” to convince suspects to consent to accompaniment and ques­tioning, rather than force the police to take the formal and stigmatizing step of arrest. Other factors, however, provide the primary rationale for the broad license that courts have recognized in the area of voluntary accompaniment. These include great deference to the perceived needs of investigators and, apparently, a feeling that such police intrusions are not unreasonable. In the Takanawa Green Mansion Case, for example, the Supreme Court explicitly referred to “the need [for investigators] to obtain detailed facts and explan­ations from the [suspect] promptly” as a major reason for permitting the four-

3¹5 day “voluntary” accompaniment of the suspect. In many cases where the voluntary accompaniment does not look altogether consensual, however, the police appear to have possessed probable cause sufficient to justify an imme­diate arrest. If the courts declared that questioning in those borderline cases was illegal, the police presumably would make more arrests.

8.2